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Civil Procedure Code (V of 1908)--

0. XLI, r. 27-Additional evidence in appellate Court-No require ment of Court for additional evidence for pronouncement of judgment No sufficient cause shown for party's failure to produce document, such being available to him at time of trial of suit--Production of additional evidence disallowed.

Muhammad Hussain and others v. Alam Din and other., P L/,D 1.955 Lah. 420 and Mst. Ram Rakhi v. Nanak Chand and another 48 P L R 329 distinguished.

Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia' Bank Ltd. P L D 1966 S C 684 ref.

Sir Muhammad Akbar Khan v. Mst. Motal and others P L D 1947 P C 322 and Baga Singh v. Imam Din and others A I R 1937 Lab. 285 rel.

Ahmad Fazal for Appellant.

Nemo for Respondents.

Date of hearing : 7th May 1974.

This appeal arises out of a sale which was challenged by a suit for possession by way of pre-emotion. The mutation was attested on 29^th April 1958, for a sum of Rs. 540. The plaintiff -appellant instituted a suit on 29th of April 1959 against the respondents who did not appear and the proceedings were taken ex parse. The plaintiff then led some oral evidence in support of his claim. He did not produce any documentary evidence. namely, copy of the record-of-rights or an Shajra-Nasab. In the evidence it was also not alleged that the vendee was not an owner in the estate. The trial Judge dismissed the suit on 5th February 1960. Feeling aggrieved by this judgment -an appeal was filed along with an application under Order XLI rule 27, C. P. C. for permission to file certain documents. The learned Additional District Judge, Rawalpindi, by his order dated 22nd October 1960, dismissed the appeal. Hence this second appeal.

2. Before the lower appellate Court application for additional evidence was resisted by the respondents but they are not represented before me. Learned counsel for the appellant has vehemently argued that the view adopted by the learned Additional District Judge is incorrect for he has not allowed the production of public documents, namely, copies of jamabandi and pedigree table for coming to a just decision in the case. In support of his submission he cited Muhammad Hussain and others v. Alam Din and others P L D 1955 Lah. 420, Mst. Ram Rakhi v. Nanak Chand and another 48 P L R 329 and Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. P L D 1966 S C 684. The Lahore case is distinguishable on the ground that the document in, question was rejected by the trial Court as having been produced too late. The High Court admitted the document in appeal. In Mst. Ram Rakhi v. Nanak Chand the position was that the appellant was not aware of the existence of the documents during the pendency of the suit. Therefore the discretion was exercised in favour of the appellant in second appeal. In Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia' Bank Ltd. P L D 1966 S C 684 it was held that need for additional evidence must be felt by Court itself after it has examined the evidence already on the record and come to the conclusion that there is apparent some inherent lacuna or defect which hinders the due administration of justice. I have myself consulted Sir Muhammad Akbar Khan" v. Mst. Motai and others P L D 1947 P C 322 and Baga Singh v. Imam Din and others A I R 1917 Lah. 285 wherein it has been held that a party should not be allowed to fill in the lacuna in the evidence. The Privy Council judgment relates to certain public documents which the appellant wanted to produce at the appellate stage. It was held that they should not be allowed because they could be put in evidence at the trial. No case is made out for additional evidence. In this appeal neither there is any requirement of the Court for additional evidence for pronouncement of judgment nor the appellant has shown any sufficient cause for his failure to produce the documents which were available to him at the time of trial of the suit.

3. Pre-emption is a right which creates a clog on normal contracts of sale. If the plaintiff -appellant fails to prove his case by his lethargy and care lessness he cannot be permitted to reap any benefit at the cost of the vendee.

The appeal fails but no order is made as to costs,

S. A. H. Appeal dismissed.

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